Diversion to alternatives to discipline program

(1) Offer of diversion. At intake, during an investigation, or at the conclusion of an investigation, if the director determines that the matter should be diverted to an alternatives to discipline program, the director may offer the attorney the opportunity to participate in the program. If the attorney rejects the offer, the matter shall proceed as otherwise provided in this chapter. Diversion to an alternatives to discipline program does not constitute discipline under this chapter. (2) Alternatives to discipline program. The alternatives to discipline program may include mediation, fee arbitration, law office management assistance, evaluation and treatment for alcohol and other substance abuse, psychological evaluation and treatment, medical evaluation and treatment, monitoring of the attorney's practice or trust account procedures, continuing legal education, ethics school, and the multistate professional responsibility examination, including those programs offered by the state bar of Wisconsin. (3) Eligibility for participation. An attorney may participate in an alternatives to discipline program when there is little likelihood that the attorney will harm the public during the period of participation, when the director can adequately supervise the conditions of the program, and when participation in the program is likely to benefit the attorney and accomplish the goals of the program. Unless good cause is shown, an attorney may not participate in an alternatives to discipline program if any of the following circumstances is present: 167 (a) The discipline likely to be imposed in the matter is more severe than a private reprimand. (b) The misconduct involves misappropriation of funds or property of a client or a third party. (c) The misconduct involves a serious crime as set forth in SCR 22.20(2). (d) The misconduct involves family violence. (e) The misconduct resulted in or is likely to result in actual injury, such as loss of money, legal rights, or valuable property rights, to a client or other person unless restitution is made a condition of diversion. (f) The attorney has been publicly disciplined within the preceding five years. (g) The matter is of the same nature as misconduct for which the attorney has been disciplined within the preceding five years. (h) The misconduct involves dishonesty, fraud, deceit, or misrepresentation. (i) The misconduct involves sexual relations prohibited under SCR 20:1.8. (j) The misconduct is the same as that for which the attorney previously has participated in an alternatives to discipline program. (k) The misconduct is part of a pattern of similar misconduct. (4) Diversion agreement. If the attorney agrees to diversion to an alternatives to discipline program, the terms of the diversion shall be set forth in a written agreement between the attorney and the director. The agreement shall specify the program to which the attorney is diverted, the general purpose of the diversion, the manner in which the attorney's compliance with the program is to be monitored, and the requirement, if any, for payment of restitution or costs. (5) Costs of diversion. The attorney shall pay all costs incurred in connection with participation in an alternatives to discipline program, unless the program provides otherwise, and the office of lawyer regulation shall not be responsible for payment of the costs. (6) Effect of diversion. (a) When the attorney enters into the alternatives to discipline program, the underlying matter shall be held in abeyance and the file shall note the diversion. 168 (b) If the director determines that the attorney has successfully completed all requirements of the alternatives to discipline program, the director shall do one of the following: (i) Close the file in the matter if the director had not determined that the matter warranted investigation or reported the matter to the preliminary review committee, pursuant to SCR 22.06(1). (ii) Dismiss the matter if the director had determined that the matter warranted investigation or reported the matter to the preliminary review committee, pursuant to SCR 22.06(1). (7) Breach of diversion agreement. If the director has reason to believe that the attorney has breached a diversion agreement, the attorney shall be given the opportunity to respond, and the parties may modify the diversion agreement or the director may, in the director's sole discretion, terminate the diversion agreement and proceed with the matter as otherwise provided in this chapter. (b) Repealed. (c) Repealed. (8) Confidentiality of files and records. All files and records of the diversion of a matter shall be confidential, except as the supreme court may order otherwise. Information regarding misconduct disclosed to a treatment provider by an attorney while in an alternatives to discipline program need not be disclosed to the office of lawyer regulation, provided the misconduct occurred prior to the attorney's entry into the program.